The Federal False Claims Act
TITLE 31. MONEY AND FINANCE
SUBTITLE III. FINANCIAL MANAGEMENT
CHAPTER 37. CLAIMS
SUBCHAPTER III. CLAIMS AGAINST THE UNITED STATES GOVERNMENT
| 3729. False claims
(a) Liability for certain acts. Any person who--
(1) knowingly presents, or causes to be presented, to an officer or employee
of the United States Government or a member of the Armed Forces of the United
States a false or fraudulent claim for payment or approval;
(2) knowingly makes, uses, or causes to be made or used, a false
record or
statement to get a false or fraudulent claim paid or approved by the Government;
(3) conspires to defraud the Government by getting a false or fraudulent
claim allowed or paid;
(4) has possession, custody, or control of property or money used, or to be
used, by the Government and, intending to defraud the Government or willfully to
conceal the property, delivers, or causes to be delivered, less property than
the amount for which the person receives a certificate or receipt;
(5) authorized to make or deliver a document certifying receipt of property
used, or to be used, by the Government and, intending to defraud the Government,
makes or delivers the receipt without completely knowing that the information on
the receipt is true;
(6) knowingly buys, or receives as a pledge of an obligation or debt, public
property from an officer or employee of the Government, or a member of the Armed
Forces, who lawfully may not sell or pledge the property; or
(7) knowingly makes, uses, or causes to be made or used, a false record or
statement to conceal, avoid, or decrease an obligation to pay or transmit money
or property to the Government,
is liable to the United States Government for a civil penalty of not less
than $ 5,000 and not more than $ 10,000, plus 3 times the amount of damages
which the Government sustains because of the act of that person, except that if
the court finds that--
(A) the person committing the violation of this subsection furnished
officials of the United States responsible for investigating false claims
violations with all information known to such person about the violation within
30 days after the date on which the defendant first obtained the information;
(B) such person fully cooperated with any Government investigation of such
violation; and
(C) at the time such person furnished the United States with the information
about the violation, no criminal prosecution, civil action, or administrative
action had commenced under this title with respect to such violation, and the
person did not have actual knowledge of the existence of an investigation into
such violation;
the court may assess not less than 2 times the amount of damages which the
Government sustains because of the act of the person. A person violating this
subsection shall also be liable to the United States Government for the costs of
a civil action brought to recover any such penalty or damages.
(b) Knowing and knowingly defined. For purposes of this section, the terms
"knowing" and "knowingly" mean that a person, with respect to information--
(1) has actual knowledge of the information;
(2) acts in deliberate ignorance of the truth or falsity of the information;
or
(3) acts in reckless disregard of the truth or falsity of the information,
and no proof of specific intent to defraud is required.
(c) Claim defined. For purposes of this section, "claim" includes any
request or demand, whether under a contract or otherwise, for money or property
which is made to a contractor, grantee, or other recipient if the United States
Government provides any portion of the money or property which is requested or
demanded, or if the Government will reimburse such contractor, grantee, or other
recipient for any portion of the money or property which is requested or
demanded.
(d) Exemption from disclosure. Any information furnished pursuant to
subparagraphs (A) through (C) of subsection (a) shall be exempt from disclosure
under section 552 of title 5.
(e) Exclusion. This section does not apply to claims, records, or statements
made under the Internal Revenue Code of 1986 [Title 26, USCS].
TITLE 31. MONEY AND FINANCE
SUBTITLE III. FINANCIAL MANAGEMENT
CHAPTER 37. CLAIMS
SUBCHAPTER III. CLAIMS AGAINST THE UNITED STATES
GOVERNMENT
31 USCS | 3730 (1994)
| 3730. Civil actions for false claims
(a) Responsibilities of the Attorney General. The Attorney General
diligently shall investigate a violation under section 3729. If the Attorney
General finds that a person has violated or is violating section 3729, the
Attorney General may bring a civil action under this section against the person.
(b) Actions by private persons.
(1) A person may bring a civil action for a violation of section 3729 for the
person and for the United States Government. The action shall be brought in the
name of the Government. The action may be dismissed only if the court and the
Attorney General give written consent to the dismissal and their reasons for
consenting.
(2) A copy of the complaint and written disclosure of substantially all
material evidence and information the person possesses shall be served on the
Government pursuant to Rule 4(d)(4) of the Federal Rules of Civil Procedure.
The complaint shall be filed in camera, shall remain under seal for at least 60
days, and shall not be served on the defendant until the court so orders. The
Government may elect to intervene and proceed with the action within 60 days
after it receives both the complaint and the material evidence and information.
(3) The Government may, for good cause shown, move the court for extensions
of the time during which the complaint remains under seal under paragraph (2).
Any such motions may be supported by affidavits or other submissions in camera.
The defendant shall not be required to respond to any complaint filed under this
section until 20 days after the complaint is unsealed and served upon the
defendant pursuant to Rule 4 of the Federal Rules of Civil Procedure.
(4) Before the expiration of the 60-day period or any extensions obtained
under paragraph (3), the Government shall--
(A) proceed with the action, in which case the action shall be conducted by
the Government; or
(B) notify the court that it declines to take over the action, in which case
the person bringing the action shall have the right to conduct the action.
(5) When a person brings an action under this subsection, no person other
than the Government may intervene or bring a related action based on the facts
underlying the pending action.
(c) Rights of the parties to qui tam actions.
(1) If the Government proceeds with the action, it shall have the primary
responsibility for prosecuting the action, and shall not be bound by an act of
the person bringing the action. Such person shall have the right to continue as
a party to the action, subject to the limitations set forth in paragraph (2).
(2) (A) The Government may dismiss the action notwithstanding the objections
of the person initiating the action if the person has been notified by the
Government of the filing of the motion and the court has provided the person
with an opportunity for a hearing on the motion.
(B) The Government may settle the action with the defendant notwithstanding
the objections of the person initiating the action if the court determines,
after a hearing, that the proposed settlement is fair, adequate, and reasonable
under all the circumstances. Upon a showing of good cause, such hearing may be
held in camera.
(C) Upon a showing by the Government that unrestricted participation during
the course of the litigation by the person initiating the action would interfere
with or unduly delay the Government's prosecution of the case, or would be
repetitious, irrelevant, or for purposes of harassment, the court may, in its
discretion, impose limitations on the person's participation, such as--
(i) limiting the number of witnesses the person may call;
(ii) limiting the length of the testimony of such witnesses;
(iii) limiting the person's cross-examination of witnesses; or
(iv) otherwise limiting the participation by the person in the litigation.
(D) Upon a showing by the defendant that unrestricted participation during
the course of the litigation by the person initiating the action would be for
purposes of harassment or would cause the defendant undue burden or unnecessary
expense, the court may limit the participation by the person in the litigation.
(3) If the Government elects not to proceed with the action, the person who
initiated the action shall have the right to conduct the action. If the
Government so requests, it shall be served with copies of all pleadings filed in
the action and shall be supplied with copies of all deposition transcripts (at
the Government's expense). When a person proceeds with the action, the court,
without limiting the status and rights of the person initiating the action, may
nevertheless permit the Government to intervene at a later date upon a showing
of good cause.
(4) Whether or not the Government proceeds with the action, upon a showing by
the Government that certain actions of discovery by the person initiating the
action would interfere with the Government's investigation or prosecution of a
criminal or civil matter arising out of the same facts, the court may stay such
discovery for a period of not more than 60 days. Such a showing shall be
conducted in camera. The court may extend the 60-day period upon a further
showing in camera that the Government has pursued the criminal or civil
investigation or proceedings with reasonable diligence and any proposed
discovery in the civil action will interfere with the ongoing criminal or
civil investigation or proceedings.
(5) Notwithstanding subsection (b), the Government may elect to pursue its
claim through any alternate remedy available to the Government, including any
administrative proceeding to determine a civil money penalty. If any such
alternate remedy is pursued in another proceeding, the person initiating the
action shall have the same rights in such proceeding as such person would have
had if the action had continued under this section. Any finding of fact or
conclusion of law made in such other proceeding that has become final shall be
conclusive on all parties to an action under this section. For purposes of the
preceding sentence, a finding or conclusion is final if it has been finally
determined on appeal to the appropriate court of the United States, if all time
for filing such an appeal with respect to the finding or conclusion has expired,
or if the finding or conclusion is not subject to judicial review.
(d) Award to qui tam plaintiff.
(1) If the Government proceeds with an action brought by a person under
subsection (b), such person shall, subject to the second sentence of this
paragraph, receive at least 15 percent but not more than 25 percent of the
proceeds of the action or settlement of the claim, depending upon the extent to
which the person substantially contributed to the prosecution of the action.
Where the action is one which the court finds to be based primarily on
disclosures of specific information (other than information provided by the
person bringing the action) relating to allegations or transactions in a
criminal, civil, or administrative hearing, in a congressional, administrative,
or Government Accounting Office report, hearing, audit, or investigation, or
from the news media, the court may award such sums as it considers appropriate,
but in no case more than 10 percent of the proceeds, taking into account the
significance of the information and the role of the person bringing the action
in advancing the case to litigation. Any payment to a person under the first or
second sentence of this paragraph shall be made from the proceeds. Any such
person shall also receive an amount for reasonable expenses which the court
finds to have been necessarily incurred, plus reasonable attorneys' fees and
costs. All such expenses, fees, and costs shall be awarded against the
defendant.
(2) If the Government does not proceed with an action under this section, the
person bringing the action or settling the claim shall receive an amount which
the court decides is reasonable for collecting the civil penalty and damages.
The amount shall be not less than 25 percent and not more than 30 percent of the
proceeds of the action or settlement and shall be paid out of such proceeds.
Such person shall also receive an amount for reasonable expenses which the court
finds to have been necessarily incurred, plus reasonable attorneys' fees and
costs. All such expenses, fees, and costs shall be awarded against the
defendant.
(3) Whether or not the Government proceeds with the action, if the court
finds that the action was brought by a person who planned and initiated the
violation of section 3729 upon which the action was brought, then the court may,
to the extent the court considers appropriate, reduce the share of the proceeds
of the action which the person would otherwise receive under paragraph (1) or
(2) of this subsection, taking into account the role of that person in advancing
the case to litigation and any relevant circumstances pertaining to the
violation. If the person bringing the action is convicted of criminal conduct
arising from his or her role in the violation of section 3729, that person shall
be dismissed from the civil action and shall not receive any share of the
proceeds of the action. Such dismissal shall not prejudice the right of the
United States to continue the action, represented by the Department of Justice.
(4) If the Government does not proceed with the action and the person
bringing the action conducts the action, the court may award to the defendant
its reasonable attorneys' fees and expenses if the defendant prevails in the
action and the court finds that the claim of the person bringing the action was
clearly frivolous, clearly vexatious, or brought primarily for purposes of
harassment.
(e) Certain actions barred.
(1) No court shall have jurisdiction over an action brought by a former or
present member of the armed forces under subsection (b) of this section against
a member of the armed forces arising out of such person's service in the armed
forces.
(2) (A) No court shall have jurisdiction over an action brought under
subsection (b) against a Member of Congress, a member of the judiciary, or a
senior executive branch official if the action is based on evidence or
information known to the Government when the action was brought.
(B) For purposes of this paragraph, "senior executive branch official" means
any officer or employee listed in paragraphs (1) through (8) of section 101(f)
of the Ethics in Government Act of 1978 (5 U.S.C. App.).
(3) In no event may a person bring an action under subsection (b) which is
based upon allegations or transactions which are the subject of a civil suit or
an administrative civil money penalty proceeding in which the Government is
already a party.
(4) (A) No court shall have jurisdiction over an action under this section
based upon the public disclosure of allegations or transactions in a criminal,
civil, or administrative hearing, in a congressional, administrative, or
Government Accounting Office report, hearing, audit, or investigation, or from
the news media, unless the action is brought by the Attorney General or the
person bringing the action is an original source of the information.
(B) For purposes of this paragraph, "original source" means an individual who
has direct and independent knowledge of the information on which the allegations
are based and has voluntarily provided the information to the Government before
filing an action under this section which is based on the information.
(f) Government not liable for certain expenses. The Government is not liable
for expenses which a person incurs in bringing an action under this section.
(g) Fees and expenses to prevailing defendant. In civil actions brought
under this section by the United States, the provisions of section 2412(d) of
title 28 shall apply.
(h) Any employee who is discharged, demoted, suspended, threatened, harassed,
or in any other manner discriminated against in the terms and conditions of
employment by his or her employer because of lawful acts done by the employee
on behalf of the employee or others in furtherance of an action under this
section, including investigation for, initiation of, testimony for, or
assistance in an action filed or to be filed under this section, shall be
entitled to all relief necessary to make the employee whole. Such relief shall
include reinstatement with the same seniority status such employee would have
had but for the discrimination, 2 times the amount of back pay, interest on the
back pay, and compensation for any special damages sustained as a result of the
discrimination, including litigation costs and reasonable attorneys' fees. An
employee may bring an action in the appropriate district court of the United
States for the relief provided in this subsection.
TITLE 31. MONEY AND FINANCE
SUBTITLE III. FINANCIAL MANAGEMENT
CHAPTER 37. CLAIMS
SUBCHAPTER III. CLAIMS AGAINST THE UNITED STATES
GOVERNMENT
31 USCS | 3731 (1994)
| 3731. False claims procedure
(a) A subpena requiring the attendance of a witness at a trial or hearing
conducted under section 3730 of this title [31 USCS | 3730] may be served at any
place in the United States.
(b) A civil action under section 3730 may not be brought--
(1) more than 6 years after the date on which the violation of section 3729
is committed, or
(2) more than 3 years after the date when facts material to the right of
action are known or reasonably should have been known by the official of the
United States charged with responsibility to act in the circumstances, but in no
event more than 10 years after the date on which the violation is committed,
whichever occurs last.
(c) In any action brought under section 3730, the United States shall be
required to prove all essential elements of the cause of action, including
damages, by a preponderance of the evidence.
(d) Notwithstanding any other provision of law, the Federal Rules of Criminal
Procedure, or the Federal Rules of Evidence, a final judgment rendered in favor
of the United States in any criminal proceeding charging fraud or false
statements, whether upon a verdict after trial or upon a plea of guilty or nolo
contendere, shall estop the defendant from denying the essential elements of the
offense in any action which involves the same transaction as in the criminal
proceeding and which is brought under subsection (a) or (b) of section 3730.
TITLE 31. MONEY AND FINANCE
SUBTITLE III. FINANCIAL MANAGEMENT
CHAPTER 37. CLAIMS
SUBCHAPTER III. CLAIMS AGAINST THE UNITED STATES
GOVERNMENT
31 USCS | 3732 (1994)
| 3732. False claims jurisdiction
(a) Actions under section 3730. Any action under section 3730 may be
brought in any judicial district in which the defendant or, in the case of
multiple defendants, any one defendant can be found, resides, transacts
business, or in which any act proscribed by section 3729 occurred. A summons as
required by the Federal Rules of Civil Procedure shall be issued by the
appropriate district court and served at any place within or outside the United
States.
(b) Claims under state law. The district courts shall have jurisdiction over
any action brought under the laws of any State for the recovery of funds paid by
a State or local government if the action arises from the same transaction or
occurrence as an action brought under section 3730.
TITLE 31. MONEY AND FINANCE
SUBTITLE III. FINANCIAL MANAGEMENT
CHAPTER 37. CLAIMS
SUBCHAPTER III. CLAIMS AGAINST THE UNITED STATES
GOVERNMENT
31 USCS | 3733 (1994)
| 3733. Civil investigative demands
(a) In general.
(1) Issuance and service. Whenever the Attorney General has reason to believe
that any person may be in possession, custody, or control of any documentary
material or information relevant to a false claims law investigation, the
Attorney General may, before commencing a civil proceeding under section 3730 or
other false claims law, issue in writing and cause to be served upon such
person, a civil investigative demand requiring such person--
(A) to produce such documentary material for inspection and copying,
(B) to answer in writing written interrogatories with respect to such
documentary material or information,
(C) to give oral testimony concerning such documentary material or
information, or
(D) to furnish any combination of such material, answers, or testimony.
The Attorney General may not delegate the authority to issue civil
investigative demands under this subsection. Whenever a civil investigative
demand is an express demand for any product of discovery, the Attorney General,
the Deputy Attorney General, or an Assistant Attorney General shall cause to be
served, in any manner authorized by this section, a copy of such demand upon the
person from whom the discovery was obtained and shall notify the person to whom
such demand is issued of the date on which such copy was served.
(2) Contents and deadlines.
(A) Each civil investigative demand issued under paragraph (1) shall state
the nature of the conduct constituting the alleged violation of a false claims
law which is under investigation, and the applicable provision of law alleged to
be violated.
(B) If such demand is for the production of documentary material, the demand
shall--
(i) describe each class of documentary material to be produced with such
definiteness and certainty as to permit such material to be fairly identified;
(ii) prescribe a return date for each such class which will provide a
reasonable period of time within which the material so demanded may be assembled
and made available for inspection and copying; and
(iii) identify the false claims law investigator to whom such material shall
be made available.
(C) If such demand is for answers to written interrogatories, the demand
shall--
(i) set forth with specificity the written interrogatories to be answered;
(ii) prescribe dates at which time answers to written interrogatories shall
be submitted; and
(iii) identify the false claims law investigator to whom such answers shall
be submitted.
(D) If such demand is for the giving of oral testimony, the demand shall--
(i) prescribe a date, time, and place at which oral testimony shall be
commenced;
(ii) identify a false claims law investigator who shall conduct the
examination and the custodian to whom the transcript of such examination shall
be submitted;
(iii) specify that such attendance and testimony are necessary to the conduct
of the investigation;
(iv) notify the person receiving the demand of the right to be accompanied by
an attorney and any other representative; and
(v) describe the general purpose for which the demand is being issued and the
general nature of the testimony, including the primary areas of inquiry, which
will be taken pursuant to the demand.
(E) Any civil investigative demand issued under this section which is an
express demand for any product of discovery shall not be returned or returnable
until 20 days after a copy of such demand has been served upon the person from
whom the discovery was obtained.
(F) The date prescribed for the commencement of oral testimony pursuant to a
civil investigative demand issued under this section shall be a date which is
not less than seven days after the date on which demand is received, unless the
Attorney General or an Assistant Attorney General designated by the Attorney
General determines that exceptional circumstances are present which warrant the
commencement of such testimony within a lesser period of time.
(G) The Attorney General shall not authorize the issuance under this section
of more than one civil investigative demand for oral testimony by the same
person unless the person requests otherwise or unless the Attorney General,
after investigation, notifies that person in writing that an additional demand
for oral testimony is necessary. The Attorney General may not, notwithstanding
section 510 of title 28, authorize the performance, by any other officer,
employee, or agency, of any function vested in the Attorney General under this
subparagraph.
(b) Protected material or information.
(1) In general. A civil investigative demand issued under subsection (a) may
not require the production of any documentary material, the submission of any
answers to written interrogatories, or the giving of any oral testimony if such
material, answers, or testimony would be protected from disclosure under--
(A) the standards applicable to subpoenas or subpoenas duces tecum issued by
a court of the United States to aid in a grand jury investigation; or
(B) the standards applicable to discovery requests under the Federal Rules of
Civil Procedure, to the extent that the application of such standards to any
such demand is appropriate and consistent with the provisions and purposes of
this section.
(2) Effect on other orders, rules, and laws. Any such demand which is an
express demand for any product of discovery supersedes any inconsistent order,
rule, or provision of law (other than this section) preventing or restraining
disclosure of such product of discovery to any person. Disclosure of any
product of discovery pursuant to any such express demand does not constitute a
waiver of any right or privilege which the person making such disclosure may be
entitled to invoke to resist discovery of trial preparation materials.
(c) Service; jurisdiction.
(1) By whom served. Any civil investigative demand issued under subsection
(a) may be served by a false claims law investigator, or by a United States
marshal or a deputy marshal, at any place within the territorial jurisdiction of
any court of the United States.
(2) Service in foreign countries. Any such demand or any petition filed under
subsection (j) may be served upon any person who is not found within the
territorial jurisdiction of any court of the United States in such manner as the
Federal Rules of Civil Procedure prescribe for service in a foreign country. To
the extent that the courts of the United States can assert jurisdiction over any
such person consistent with due process, the United States District Court for
the District of Columbia shall have the same jurisdiction to take any action
respecting compliance with this section by any such person that such court would
have if such person were personally within the jurisdiction of such court.
(d) Service upon legal entities and natural persons.
(1) Legal entities. Service of any civil investigative demand issued under
subsection (a) or of any petition filed under subsection (j) may be made upon a
partnership, corporation, association, or other legal entity by--
(A) delivering an executed copy of such demand or petition to any partner,
executive officer, managing agent, or general agent of the partnership,
corporation, association, or entity, or to any agent authorized by appointment
or by law to receive service of process on behalf of such partnership,
corporation, association, or entity;
(B) delivering an executed copy of such demand or petition to the principal
office or place of business of the partnership, corporation, association, or
entity; or
(C) depositing an executed copy of such demand or petition in the United
States mails by registered or certified mail, with a return receipt requested,
addressed to such partnership, corporation, association, or entity at its
principal office or place of business.
(2) Natural persons. Service of any such demand or petition may be made upon
any natural person by--
(A) delivering an executed copy of such demand or petition to the person; or
(B) depositing an executed copy of such demand or petition in the United
States mails by registered or certified mail, with a return receipt requested,
addressed to the person at the person's residence or principal office or place
of business.
(e) Proof of service. A verified return by the individual serving any civil
investigative demand issued under subsection (a) or any petition filed under
subsection (j) setting forth the manner of such service shall be proof of such
service. In the case of service by registered or certified mail, such return
shall be accompanied by the return post office receipt of delivery of such
demand.
(f) Documentary material.
(1) Sworn certificates. The production of documentary material in response to
a civil investigative demand served under this section shall be made under a
sworn certificate, in such form as the demand designates, by--
(A) in the case of a natural person, the person to whom the demand is
directed, or
(B) in the case of a person other than a natural person, a person having
knowledge of the facts and circumstances relating to such production and
authorized to act on behalf of such person.
The certificate shall state that all of the documentary material required by
the demand and in the possession, custody, or control of the person to whom the
demand is directed has been produced and made available to the false claims law
investigator identified in the demand.
(2) Production of materials. Any person upon whom any civil investigative
demand for the production of documentary material has been served under this
section shall make such material available for inspection and copying to the
false claims law investigator identified in such demand at the principal place
of business of such person, or at such other place as the false claims law
investigator and the person thereafter may agree and prescribe in writing, or as
the court may direct under subsection (j)(1). Such material shall be made so
available on the return date specified in such demand, or on such later date as
the false claims law investigator may prescribe in writing. Such person may,
upon written agreement between the person and the false claims law investigator,
substitute copies for originals of all or any part of such material.
(g) Interrogatories. Each interrogatory in a civil investigative demand
served under this section shall be answered separately and fully in writing
under oath and shall be submitted under a sworn certificate, in such form as the
demand designates, by--
(1) in the case of a natural person, the person to whom the demand is
directed, or
(2) in the case of a person other than a natural person, the person or
persons responsible for answering each interrogatory.
If any interrogatory is objected to, the reasons for the objection shall be
stated in the certificate instead of an answer. The certificate shall state that
all information required by the demand and in the possession, custody, control,
or knowledge of the person to whom the demand is directed has been submitted. To
the extent that any information is not furnished, the information shall be
identified and reasons set forth with particularity regarding the reasons why
the information was not furnished.
(h) Oral examinations.
(1) Procedures. The examination of any person pursuant to a civil
investigative demand for oral testimony served under this section shall be taken
before an officer authorized to administer oaths and affirmations by the laws of
the United States or of the place where the examination is held. The officer
before whom the testimony is to be taken shall put the witness on oath or
affirmation and shall, personally or by someone acting under the direction of
the officer and in the officer's presence, record the testimony of the witness.
The testimony shall be taken stenographically and shall be transcribed. When
the testimony is fully transcribed, the officer before whom the testimony is
taken shall promptly transmit a copy of the transcript of the testimony to the
custodian. This subsection shall not preclude the taking of testimony by any
means authorized by, and in a manner consistent with, the Federal Rules of Civil
Procedure.
(2) Persons present. The false claims law investigator conducting the
examination shall exclude from the place where the examination is held all
persons except the person giving the testimony, the attorney for and any other
representative of the person giving the testimony, the attorney for the
Government, any person who may be agreed upon by the attorney for the Government
and the person giving the testimony, the officer before whom the testimony is to
be taken, and any stenographer taking such testimony.
(3) Where testimony taken. The oral testimony of any person taken pursuant to
a civil investigative demand served under this section shall be taken in the
judicial district of the United States within which such person resides, is
found, or transacts business, or in such other place as may be agreed upon by
the false claims law investigator conducting the examination and such person.
(4) Transcript of testimony. When the testimony is fully transcribed, the
false claims law investigator or the officer before whom the testimony is taken
shall afford the witness, who may be accompanied by counsel, a reasonable
opportunity to examine and read the transcript, unless such examination and
reading are waived by the witness. Any changes in form or substance which the
witness desires to make shall be entered and identified upon the transcript by
the officer or the false claims law investigator, with a statement of the
reasons given by the witness for making such changes. The transcript shall then
be signed by the witness, unless the witness in writing waives the signing, is
ill, cannot be found, or refuses to sign. If the transcript is not signed by the
witness within 30 days after being afforded a reasonable opportunity to examine
it, the officer or the false claims law investigator shall sign it and state on
the record the fact of the waiver, illness, absence of the witness, or the
refusal to sign, together with the reasons, if any, given therefor.
(5) Certification and delivery to custodian. The officer before whom the
testimony is taken shall certify on the transcript that the witness was sworn by
the officer and that the transcript is a true record of the testimony given by
the witness, and the officer or false claims law investigator shall promptly
deliver the transcript, or send the transcript by registered or certified mail,
to the custodian.
(6) Furnishing or inspection of transcript by witness. Upon payment of
reasonable charges therefor, the false claims law investigator shall furnish a
copy of the transcript to the witness only, except that the Attorney General,
the Deputy Attorney General, or an Assistant Attorney General may, for good
cause, limit such witness to inspection of the official transcript of the
witness' testimony.
(7) Conduct of oral testimony.
(A) Any person compelled to appear for oral testimony under a civil
investigative demand issued under subsection (a) may be accompanied,
represented, and advised by counsel. Counsel may advise such person, in
confidence, with respect to any question asked of such person. Such person or
counsel may object on the record to any question, in whole or in part, and shall
briefly state for the record the reason for the objection. An objection may be
made, received, and entered upon the record when it is claimed that such person
is entitled to refuse to answer the question on the grounds of any
constitutional or other legal right or privilege, including the privilege
against self-incrimination. Such person may not otherwise object to or refuse to
answer any question, and may not directly or through counsel otherwise interrupt
the oral examination. If such person refuses to answer any question, a petition
may be filed in the district court of the United States under subsection (j)(1)
for an order compelling such person to answer such question.
(B) If such person refuses to answer any question on the grounds of the
privilege against self-incrimination, the testimony of such person may be
compelled in accordance with the provisions of part V of title 18.
(8) Witness fees and allowances. Any person appearing for oral testimony
under a civil investigative demand issued under subsection (a) shall be entitled
to the same fees and allowances which are paid to witnesses in the district
courts of the United States.
(i) Custodians of documents, answers, and transcripts.
(1) Designation. The Attorney General shall designate a false claims law
investigator to serve as custodian of documentary material, answers to
interrogatories, and transcripts of oral testimony received under this section,
and shall designate such additional false claims law investigators as the
Attorney General determines from time to time to be necessary to serve as
deputies to the custodian.
(2) Responsibility for materials; disclosure.
(A) A false claims law investigator who receives any documentary material,
answers to interrogatories, or transcripts of oral testimony under this section
shall transmit them to the custodian. The custodian shall take physical
possession of such material, answers, or transcripts and shall be responsible
for the use made of them and for the return of documentary material under
paragraph (4).
(B) The custodian may cause the preparation of such copies of such
documentary material, answers to interrogatories, or transcripts of oral
testimony as may be required for official use by any false claims law
investigator, or other officer or employee of the Department of Justice, who is
authorized for such use under regulations which the Attorney General shall
issue. Such material, answers, and transcripts may be used by any such
authorized false claims law investigator or other officer or employee in
connection with the taking of oral testimony under this section.
(C) Except as otherwise provided in this subsection, no documentary material,
answers to interrogatories, or transcripts of oral testimony, or copies thereof,
while in the possession of the custodian, shall be available for examination by
any individual other than a false claims law investigator or other officer or
employee of the Department of Justice authorized under subparagraph (B). The
prohibition in the preceding sentence on the availability of material, answers,
or transcripts shall not apply if consent is given by the person who produced
such material, answers, or transcripts, or, in the case of any product of
discovery produced pursuant to an express demand for such material, consent is
given by the person from whom the discovery was obtained. Nothing in this
subparagraph is intended to prevent disclosure to the Congress, including any
committee or subcommittee of the Congress, or to any other agency of the United
States for use by such agency in furtherance of its statutory responsibilities.
Disclosure of information to any such other agency shall be allowed only upon
application, made by the Attorney General to a United States district court,
showing substantial need for the use of the information by such agency in
furtherance of its statutory responsibilities.
(D) While in the possession of the custodian and under such reasonable terms
and conditions as the Attorney General shall prescribe--
(i) documentary material and answers to interrogatories shall be available
for examination by the person who produced such material or answers, or by a
representative of that person authorized by that person to examine such material
and answers; and
(ii) transcripts of oral testimony shall be available for examination by the
person who produced such testimony, or by a representative of that person
authorized by that person to examine such transcripts.
(3) Use of material, answers, or transcripts in other proceedings. Whenever
any attorney of the Department of Justice has been designated to appear before
any court, grand jury, or Federal agency in any case or proceeding, the
custodian of any documentary material, answers to interrogatories, or
transcripts of oral testimony received under this section may deliver to such
attorney such material, answers, or transcripts for official use in connection
with any such case or proceeding as such attorney determines to be required.
Upon the completion of any such case or proceeding, such attorney shall return
to the custodian any such material, answers, or transcripts so delivered which
have not passed into the control of such court, grand jury, or agency through
introduction into the record of such case or proceeding.
(4) Conditions for return of material. If any documentary material has been
produced by any person in the course of any false claims law investigation
pursuant to a civil investigative demand under this section, and--
(A) any case or proceeding before the court or grand jury arising out of such
investigation, or any proceeding before any Federal agency involving such
material, has been completed, or
(B) no case or proceeding in which such material may be used has been
commenced within a reasonable time after completion of the examination and
analysis of all documentary material and other information assembled in the
course of such investigation,
the custodian shall, upon written request of the person who produced such
material, return to such person any such material (other than copies furnished
to the false claims law investigator under subsection (f)(2) or made for the
Department of Justice under paragraph (2)(B)) which has not passed into the
control of any court, grand jury, or agency through introduction into the record
of such case or proceeding.
(5) Appointment of successor custodians. In the event of the death,
disability, or separation from service in the Department of Justice of the
custodian of any documentary material, answers to interrogatories, or
transcripts of oral testimony produced pursuant to a civil investigative demand
under this section, or in the event of the official relief of such custodian
from responsibility for the custody and control of such material, answers, or
transcripts, the Attorney General shall promptly--
(A) designate another false claims law investigator to serve as custodian of
such material, answers, or transcripts, and
(B) transmit in writing to the person who produced such material, answers, or
testimony notice of the identity and address of the successor so designated.
Any person who is designated to be a successor under this paragraph shall
have, with regard to such material, answers, or transcripts, the same duties and
responsibilities as were imposed by this section upon that person's predecessor
in office, except that the successor shall not be held responsible for any
default or dereliction which occurred before that designation.
(j) Judicial proceedings.
(1) Petition for enforcement. Whenever any person fails to comply with any
civil investigative demand issued under subsection (a), or whenever satisfactory
copying or reproduction of any material requested in such demand cannot be done
and such person refuses to surrender such material, the Attorney General may
file, in the district court of the United States for any judicial district in
which such person resides, is found, or transacts business, and serve upon such
person a petition for an order of such court for the enforcement of the civil
investigative demand.
(2) Petition to modify or set aside demand.
(A) Any person who has received a civil investigative demand issued under
subsection (a) may file, in the district court of the United States for the
judicial district within which such person resides, is found, or transacts
business, and serve upon the false claims law investigator identified in such
demand a petition for an order of the court to modify or set aside such demand.
In the case of a petition addressed to an express demand for any product of
discovery, a petition to modify or set aside such demand may be brought only in
the district court of the United States for the judicial district in which the
proceeding in which such discovery was obtained is or was last pending. Any
petition under this subparagraph must be filed--
(i) within 20 days after the date of service of the civil investigative
demand, or at any time before the return date specified in the demand, whichever
date is earlier, or
(ii) within such longer period as may be prescribed in writing by any false
claims law investigator identified in the demand.
(B) The petition shall specify each ground upon which the petitioner relies
in seeking relief under subparagraph (A), and may be based upon any failure of
the demand to comply with the provisions of this section or upon any
constitutional or other legal right or privilege of such person. During the
pendency of the petition in the court, the court may stay, as it deems proper,
the running of the time allowed for compliance with the demand, in whole or in
part, except that the person filing the petition shall comply with any portions
of the demand not sought to be modified or set aside.
(3) Petition to modify or set aside demand for product of discovery.
(A) In the case of any civil investigative demand issued under subsection (a)
which is an express demand for any product of discovery, the person from whom
such discovery was obtained may file, in the district court of the United States
for the judicial district in which the proceeding in which such discovery was
obtained is or was last pending, and serve upon any false claims law
investigator identified in the demand and upon the recipient of the demand, a
petition for an order of such court to modify or set aside those portions of the
demand requiring production of any such product of discovery. Any petition
under this subparagraph must be filed--
(i) within 20 days after the date of service of the civil investigative
demand, or at any time before the return date specified in the demand, whichever
date is earlier, or
(ii) within such longer period as may be prescribed in writing by any false
claims law investigator identified in the demand.
(B) The petition shall specify each ground upon which the petitioner relies
in seeking relief under subparagraph (A), and may be based upon any failure of
the portions of the demand from which relief is sought to comply with the
provisions of this section, or upon any constitutional or other legal right or
privilege of the petitioner. During the pendency of the petition, the court may
stay, as it deems proper, compliance with the demand and the running of the time
allowed for compliance with the demand.
(4) Petition to require performance by custodian of duties. At any time
during which any custodian is in custody or control of any documentary material
or answers to interrogatories produced, or transcripts of oral testimony given,
by any person in compliance with any civil investigative demand issued under
subsection (a), such person, and in the case of an express demand for any
product of discovery, the person from whom such discovery was obtained, may
file, in the district court of the United States for the judicial district
within which the office of such custodian is situated, and serve upon such
custodian, a petition for an order of such court to require the performance by
the custodian of any duty imposed upon the custodian by this section.
(5) Jurisdiction. Whenever any petition is filed in any district court of the
United States under this subsection, such court shall have jurisdiction to hear
and determine the matter so presented, and to enter such order or orders as may
be required to carry out the provisions of this section. Any final order so
entered shall be subject to appeal under section 1291 of title 28. Any
disobedience of any final order entered under this section by any court shall be
punished as a contempt of the court.
(6) Applicability of Federal Rules of Civil Procedure. The Federal Rules of
Civil Procedure shall apply to any petition under this subsection, to the extent
that such rules are not inconsistent with the provisions of this section.
(k) Disclosure exemption. Any documentary material, answers to written
interrogatories, or oral testimony provided under any civil investigative demand
issued under subsection (a) shall be exempt from disclosure under section 552 of
title 5.
(l) Definitions. For purposes of this section--
(1) the term "false claims law" means--
(A) this section and sections 3729 through 3732; and
(B) any Act of Congress enacted after the date of the enactment of this
section [enacted Oct. 27, 1986] which prohibits, or makes available to the
United States in any court of the United States any civil remedy with respect
to, any false claim against, bribery of, or corruption of any officer or
employee of the United States;
(2) the term "false claims law investigation" means any inquiry conducted by
any false claims law investigator for the purpose of ascertaining whether any
person is or has been engaged in any violation of a false claims law;
(3) the term "false claims law investigator" means any attorney or
investigator employed by the Department of Justice who is charged with the duty
of enforcing or carrying into effect any false claims law, or any officer or
employee of the United States acting under the direction and supervision of such
attorney or investigator in connection with a false claims law investigation;
(4) the term "person" means any natural person, partnership, corporation,
association, or other legal entity, including any State or political subdivision
of a State;
(5) the term "documentary material" includes the original or any copy of any
book, record, report, memorandum, paper, communication, tabulation, chart, or
other document, or data compilations stored in or accessible through computer or
other information retrieval systems, together with instructions and all other
materials necessary to use or interpret such data compilations, and any product
of discovery;
(6) the term "custodian" means the custodian, or any deputy custodian,
designated by the Attorney General under subsection (i)(1); and
(7) the term "product of discovery" includes--
(A) the original or duplicate of any deposition, interrogatory, document,
thing, result of the inspection of land or other property, examination, or
admission, which is obtained by any method of discovery in any judicial or
administrative proceeding of an adversarial nature;
(B) any digest, analysis, selection, compilation, or derivation of any item
listed in subparagraph (A); and
(C) any index or other manner of access to any item listed in subparagraph
(A).
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If you have questions about the law or are interested in pursuing a qui tam lawsuit, please feel free to contact us at:
Taxpayers Against Fraud The False Claims Act Legal Center 1220 19th Street, N.W. Suite 501 Washington, D.C. 20036
Phone: 202-296-4826 Toll Free: 1-800-USFALSE (1-800-873-2573) FAX: 202-296-4838 Auto-Reply E-Mail: taf-info@taf.org E-Mail: amw@taf.org (Amy Wilken, Esq.)
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1995 by Taxpayers Against
Fraud, The False Claims Act Legal Center. All rights reserved. Reproduction is
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